The Supreme Court has signaled that the law limiting the creation of waqfs to Muslims is not, at first glance, arbitrary. The reasoning: those outside the faith still retain avenues to contribute property for charitable purposes, such as through trusts.
A bench led by Chief Justice BR Gavai, with Justice AG Masih, delivered an interim order staying parts of the newly introduced Waqf (Amendment) Act, 2025. Among the provisions on hold is Section 3(1)(r), which mandates that only a person who has practiced Islam for at least five years may dedicate property as waqf.
However, the Court declined to halt the removal of Section 104 from the original 1955 Act. Petitioners had challenged its deletion but, the judges observed, their arguments undercut themselves: while insisting waqf is inseparable from the Islamic faith, they simultaneously sought to preserve a window for non-Muslims to dedicate properties as waqf.
“If waqf is indeed religion-specific,” the bench remarked, “then eliminating a provision that earlier allowed non-Muslims to donate for waqf cannot be branded as arbitrary.”
The Court further pointed out that non-Muslim citizens remain free to transfer their properties into charitable trusts, which can serve purposes similar to those listed under the now-deleted Section 104. The amendment, it suggested, merely brings the law in line with the statutory definition of waqf under the amended Section 3(r).
The matter remains under judicial scrutiny, with the Court balancing competing claims of religious specificity, charitable intent, and legislative consistency.
